Estien v. Showalter et al
Filing
52
MEMORANDUM re Dfts' Mtns to dismiss 16 and 20 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 09/30/14. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
EDWIN ESTIEN,
Plaintiff
v.
MARY LOU SHOWALTER, et al.,
Defendants
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CIVIL NO. 1:CV-13-2474
(Judge Rambo)
MEMORANDUM
On September 30, 2013, Plaintiff Edwin Estien, an inmate currently
incarcerated at the State Correctional Institution in Coal Township, Pennsylvania
(“SCI-Coal Township”), commenced this civil rights action by filing a complaint
pursuant to the provisions of 42 U.S.C. § 1983. (Doc. 1.) In the complaint, Plaintiff
alleges that Defendants, past and present employees (“Corrections Defendants”) of his
former place of incarceration, the State Correctional Institution in Huntingdon,
Pennsylvania (“SCI-Huntingdon”), as well as medical staff employed at SCIHuntingdon (“Medical Defendants”),1 were deliberately indifferent to his serious
medical needs with respect to care for injuries to his thumb. Plaintiff also raises
allegations of retaliation, conspiracy, and related state law claims.
The Corrections Defendants named are as follows: former Corrections Health Care
Administrator (“CHCA”) Showalter; current CHCA Price; Security Captain Harris; and RHU
Lieutenant Dunkle. The Medical Defendants named are as follows: Clinical Coordinator Tracey
Parkes, and Luis O. Araneda, M.D.
1
Presently before the court are two motions to dismiss, filed by both sets of
Defendants. (Docs. 16 & 20.) For the reasons set forth below, the motions will be
granted in part and denied in part.
I.
Background
A.
Facts
In the complaint, Plaintiff provides the following factual background with
respect to his claims. For purposes of disposition of the instant motions to dismiss,
the factual allegations asserted in the complaint will be accepted as true and viewed in
a light most favorable to Plaintiff.
On April 17, 2012, Plaintiff suffered a broken left thumb and deep cut from a
razor blade as a result of altercation with another inmate at his former place of
incarceration, SCI-Huntingdon. (Doc. 1 ¶ 1.) After the fight, Plaintiff was escorted to
the Restricted Housing Unit (“RHU”). (Id.) Plaintiff requested medical assistance
once there, and Defendant RHU Lieutenant Dunkle took photographs of Plaintiff’s
swollen and bleeding left thumb. (Id. ¶ 1.) Plaintiff alleges that Defendant Dunkle
stated that he would not call for medical assistance and told Plaintiff to “sit in [his]
cell and think about what [he] did because the inmate that [he] was fighting was one
2
of his informants and the pain [he’s] in should teach [him] a lesson.” (Id.) Defendant
Dunkle failed to inform the medical department of Plaintiff’s need for assistance on
that day, April 17, 2012. (Id.) As a result, Plaintiff stayed in an RHU cell that night
without being seen by medical and suffered pain for three (3) subsequent days before
he was seen by the prison’s medical staff and then taken to an outside hospital. (Id. ¶
2.)
On April 20, 2012, Plaintiff was examined at SCI-Huntingdon’s medical
department by a woman identified by Plaintiff as Ms. Milisa, who x-rayed Plaintiff’s
injuries and informed Defendants Parkes and Showalter, both Health Care
Administrators at the institution, of Plaintiff’s injuries. (Id. ¶ 3.) Defendant Parkes
organized an escort team to take Plaintiff to the Altoona Regional Hospital for
treatment. (Id.) At the hospital, a physician identified by Plaintiff as Dr. Stauff noted
Plaintiff’s broken thumb, as well as a piece of razor blade left in it from the fight. (Id.
¶ 4.) He requested immediate surgery and scheduled two walk-in appointments,
including one in particular scheduled for April 23, 2012. (Id.) Both Defendants
Parkes and Showalter were informed of Plaintiff’s appointments and need for
immediate surgery. (Id. ¶¶ 5, 6.) However, Defendant Parkes did not make the
3
arrangements to have Plaintiff escorted to Altoona Hospital on April 23, 2012. (Id. ¶ 5.)
On April 30, 2012, Plaintiff submitted a request slip to Defendant Showalter,
requesting pain medication for his injuries. (Id. ¶ 7.) Defendant Showalter responded
on the same day, informing Plaintiff that “she’d do nothing for [him] until [he]
returned to the outside hospital and [was] seen by an orthopedic specialist.” (Id.) As
a result, Defendant Showalter took no immediate steps to schedule Plaintiff for an
appointment with a nurse or physician’s assistant, to contact Dr. Stauff about surgery,
or to give Plaintiff medication. (Id.)
Plaintiff alleges that due to this delay, he remained in severe pain until May 9,
2012, at which time he was seen again by Dr. Stauff. (Id. ¶ 8.) He alleges that, at the
examination, Dr. Stauff stated that Plaintiff’s bone had taken on a “V shape” and that
he was “scared to touch [Plaintiff’s] hand based on his experience.” (Id.) As a result,
Plaintiff was sent to State College Orthopedic Center, where he underwent surgery on
his hand performed by Dr. Christopher Lincoskie on May 10, 2012. (Id.)
On June 15, 2012, Plaintiff requested an emergency medical referral from the
nurse he saw on the medical line after his hand got jammed in the food slot of his cell
door. (Id. ¶ 9.) Defendant Dr. Araneda came to Plaintiff’s cell that same day, looked
at Plaintiff’s cast and concluded there was no further damage to his hand. (Id.)
4
Defendant Dr. Araneda also noted that Plaintiff was already prescribed Motrin for the
pain. (Id.) Plaintiff alleges that Defendant Dr. Araneda told Plaintiff he should
“[bear] the pain because he’s not doing nothing else for [him].” (Id.)
Plaintiff’s cast was removed on June 18, 2012. (Id. ¶ 10.) On June 21, 2012,
Plaintiff submitted a sick call slip to address his pain. (Id.) Resultantly, Defendant
Dr. Araneda examined Plaintiff on June 22, 2012 for the pain and Plaintiff’s
difficulties flexing his fingers. (Id.) Plaintiff asked Defendant Dr. Araneda about a
brace and six (6) weeks of physical therapy ordered by the doctor who performed the
surgery. (Id.) Defendant Dr. Araneda responded that Plaintiff would not be receiving
the brace and that physical therapy was not necessary. (Id.)
On July 2, 2012, Plaintiff encountered Defendant Captain Harris in the RHU’s
recreation yard. (Id. ¶ 14.) Plaintiff reminded Defendant Harris that he had sent him a
request slip pertaining to the brace for his arm, but Defendant Harris had denied that
request. (Id.) Defendant Harris confirmed that he was not granting the request,
stating, according to Plaintiff, “you should have thought about that when you got into
that fight.” (Id. ¶ 15.) He also stated that he knew Plaintiff possessed a weapon
during the fight, which may have been gang-related, but understood that Plaintiff had
to defend himself because “the odds were against” Plaintiff. (Id.)
5
On July 16, 2012, Plaintiff wrote two request slips to Defendant Nurse Price,
inquiring about physical therapy and the brace for his arm. (Id. ¶ 12.) Defendant
Price responded the following day, indicating that Plaintiff would start physical
therapy in August and, at that time, he would be evaluated for a brace. (Id.) Plaintiff
asserts that he never started physical therapy or received a brace. (Id.)
On July 17, 2012, Plaintiff was seen by Defendant Dr. Araneda and Nurse
Lench for the continued pain and stiffness in his left wrist and thumb. (Id. ¶ 11.)
When Plaintiff asked about physical therapy, Defendant Dr. Araneda told Plaintiff to
try gripping a tennis ball in his cell, but Nurse Lench stated that he could use a wash
rag and Plaintiff “should stop being a big baby.” (Id.)
On July 24, 2012, Defendants Price and Dr. Araneda visited Plaintiff at his cell.
(Id. ¶ 13.) Plaintiff claims this visit was in response to his filing a grievance against
Defendant Price for her “nefarious atrosity [sic] and scheme to cover up Ms. Mary
Lou Showalter downfalls.” (Id.) Plaintiff asked again about receiving physical
therapy, and, according to Plaintiff, Defendant Price responded, “Do you think filing
any grievances is going to help you, you got another thing coming Mr., you will rot in
this RHU before you get any help from any one of us.” (Id.) In addition to this
6
encounter, Plaintiff also received a response from Defendant Showalter to a grievance
he previously filed, with reference to an earlier response to another grievance. (Id.)
B.
Procedural History
Plaintiff initiated this action with a complaint filed on September 30, 2013.
(Doc. 1.) By order dated October 7, 2013, the court directed service of the complaint
on all Defendants named therein. (Doc. 7.) On December 9, 2013, Corrections
Defendants filed a motion to dismiss the complaint and supporting brief. (Docs. 16 &
17.) On December 16, 2013, Medical Defendants also filed a motion to dismiss the
complaint and supporting brief. (Docs. 20 & 21.) Pursuant to M.D. Pa. Local Rule
7.6, Plaintiff had fourteen (14) days from the service of each set of motions to dismiss
and briefs to file briefs in opposition to the motions. Since the filings of the motions
to dismiss, the court granted Plaintiff five extensions of time to file one all-inclusive
brief in opposition. (See Docs. 23, 28, 31, 34, 39.) In the latest of the orders granting
Plaintiff’s requests for an extension, the court directed Plaintiff to file one allinclusive brief in opposition by June 23, 2014. (Doc. 39.) In addition, per Plaintiff’s
request, the court informed Plaintiff that, at the time he files his brief in opposition to
the motions to dismiss, he may file a proposed amended complaint, which would be
screened by the court pursuant to 28 U.S.C. § 1915. (Id.) Because Plaintiff neither
7
filed an opposition to either motion to dismiss nor filed a proposed amended
complaint, the court again extended the deadline for Plaintiff’s response by order
dated July 2, 2014. (Doc. 40.) After subsequently granting two additional motions
for extensions of time, (see Docs. 44, 46), the court received Plaintiff’s briefs in
opposition (Docs. 48, 49) and proposed amended complaint (Doc. 47) on August 8,
2014. Corrections Defendants filed a reply brief on August 22, 2014. (Doc. 50.)
Thus, the motions to dismiss are now ripe for disposition.
II.
Standard of Review
Among other requirements, a sound complaint must set forth “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). This statement must “give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Fair notice” in the
context of Rule 8(a)(2) “depends on the type of case – some complaints will require at
least some factual allegations to make out a showing that the pleader is entitled to
relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quotation
omitted). “[A] situation may arise where, at some point, the factual detail in a
8
complaint is so undeveloped that it does not provide a defendant the type of notice of
claim which is contemplated by Rule 8.” Id. A plaintiff must provide more than
“labels and conclusions” or “a formulaic recitation of the elements of a cause of
action” to show entitlement to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Twombly, 550 U.S. at 555) (recognizing that Rule 8 pleading standard “does
not require ‘detailed factual allegations,’ but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation”); accord, e.g., Baraka v. McGreevey,
481 F.3d 187, 195 (3d Cir. 2007) (stating that the court is not “compelled to accept
unsupported conclusions and unwarranted inferences or a legal conclusion couched as
a factual allegation” (quotations and citations omitted)).
A defendant may attack a complaint by a motion under Rule 12(b)(6) for failure
to state a claim upon which relief can be granted. In deciding a motion to dismiss
under Rule 12(b)(6), the court is required to accept as true all of the factual allegations
in the complaint, Erickson v. Pardus, 551 U.S. 89, 93 (2007), and all reasonable
inferences permitted by the factual allegations, Watson v. Abington Twp., 478 F.3d
144, 150 (3d Cir. 2007), and view them in the light most favorable to the plaintiff,
Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007). If the facts alleged are sufficient
to “raise a right to relief above the speculative level” such that the plaintiff’s claim is
9
“plausible on its face,” a complaint will survive a motion to dismiss. Iqbal, 556 U.S.
at 663 (citing Twombly, 550 U.S. at 555, 570) (explaining a claim has “facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged”); see also
Phillips, 515 F.3d at 234; Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007);
Stevenson v. Carroll, 495 F.3d 62, 66 (3d Cir. 2007). Further, when a complaint
contains well-pleaded factual allegations, “a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.” Id. at 664.
However, a court is “not bound to accept as true a legal conclusion couched as a
factual allegation.” Id. at 678 (quoting Twombly, 550 U.S. at 555). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements
do not suffice.” Id.
“To decide a motion to dismiss, courts generally consider only the allegations
contained in the complaint, exhibits attached to the complaint and matters of public
record.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192,
1196 (3d Cir. 1993) (citations omitted); see also Sands v. McCormick, 502 F.3d 263,
268 (3d Cir. 2007). The court may consider “undisputedly authentic document[s] that
a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are
10
based on the [attached] document[s].” Pension Benefit, 998 F.2d at 1196.
Additionally, “documents whose contents are alleged in the complaint and whose
authenticity no party questions, but which are not physically attached to the pleading,
may be considered.” Pryor v. Nat’l Coll. Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.
2002) (citation omitted); see also U.S. Express Lines, Ltd. v Higgins, 281 F.3d 383,
388 (3d Cir. 2002) (“Although a district court may not consider matters extraneous to
the pleadings, a document integral to or explicitly relied upon in the complaint may be
considered without converting the motion to dismiss into one for summary judgment.”
(internal quotation omitted)). However, the court may not rely on other parts of the
record in making its decision. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d
1250, 1261 (3d Cir. 1994).
When presented with a pro se complaint, the court should construe the
complaint liberally and draw fair inferences from what is not alleged as well as from
what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003); Youse v.
Carlucci, 867 F. Supp. 317, 318 (E.D. Pa. 1994). Such a complaint “must be held to
less stringent standards than formal pleadings drafted by lawyers.” Erickson,551 U.S.
at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
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Finally, in the Third Circuit, a court must grant leave to amend before
dismissing a civil rights complaint that is merely deficient. See, e.g., Fletcher-Harlee
Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Weston v.
Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001); Shane v. Fauver, 213 F.3d 113, 116
(3d Cir. 2000). “Dismissal without leave to amend is justified only on the grounds of
bad faith, undue delay, prejudice, or futility.” Alston v. Parker, 363 F.3d 229, 236 (3d
Cir. 2004).
III.
Discussion
In order to state a viable § 1983 claim, a plaintiff must plead two essential
elements: 1) that the conduct complained of was committed by a person acting under
color of state law; and 2) that said conduct deprived the plaintiff of a right, privilege,
or immunity secured by the Constitution and laws of the United States. West v.
Atkins, 487 U.S. 42, 48 (1988). A defendant’s conduct must have a close causal
connection to plaintiff’s injury in order for § 1983 liability to attach. Martinez v.
California, 444 U.S. 277, 285 (1980).2 A prerequisite for a viable civil rights claim is
The Court in Martinez explained: “Although a § 1983 claim has been described as ‘a
species of tort liability,’ Imbler v. Pachtman, 424 U.S. 409, 417, 96 S. Ct. 984, 988, 47 L. Ed. 2d.
128 [(1976)], it is perfectly clear that not every injury in which a state official has played some part
is actionable under that statute.” Martinez, 444 U.S. at 285.
2
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that a defendant directed, or knew of and acquiesced in, the deprivation of a plaintiff’s
constitutional rights. Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988).
On its face, § 1983 creates no exceptions to the liability it imposes, nor does it speak
of immunity for any individual who might deprive another of civil rights. See Buckley
v. Fitzsimmons, 509 U.S. 259, 268 (1993). Nevertheless, it is well-settled that certain
government officials possess immunity from § 1983 liability. Id.
As stated, there are two motions to dismiss pending in the instant case. In the
Corrections Defendants’ motion to dismiss, they argue that the complaint should be
dismissed on the following grounds: (1) Plaintiff has failed to allege personal
involvement on the part of some of the Corrections Defendants and the denial of
inmate grievances and appeals does not give rise to constitutional violations; (2)
Plaintiff has failed to allege Corrections Defendants’ deliberate indifference to his
serious medical needs; (3) Plaintiff has failed to state a claim of retaliation against
Corrections Defendants; (4) Plaintiff has failed to state a claim of conspiracy against
Corrections Defendants; and (5) Plaintiff’s claims of intentional torts should be
dismissed because Corrections Defendants are immune from suit. In the Medical
Defendants’ motion to dismiss, they argue that the complaint should be dismissed on
the following grounds: (1) Plaintiff has failed to state a claim of deliberate
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indifference against the Medical Defendants; (2) Plaintiff’s medical negligence and
malpractice claims are barred due to Plaintiff’s failure to file a certificate of merit; (3)
Plaintiff has failed to state a claim of conspiracy against Medical Defendants; (4)
Plaintiff has failed to state a claim under the Fourteenth Amendment;3 and (5)
Plaintiff’s claims for punitive damages should be dismissed.4 The court will first
address the Corrections Defendants’ argument concerning personal involvement
before addressing the balance of the motions to dismiss.
A.
Personal Involvement
Commonwealth Defendants argue that Defendant Dunkle should be dismissed
as a party in this action because Plaintiff has failed to show his personal involvement
with respect to Plaintiff’s claim relating to deliberate indifference to his serious
medical needs. Further, they argue that Defendants Showalter and Price should be
dismissed as a parties because Plaintiff has failed to show their personal involvement
based solely on their authority to grant or deny inmate grievances.
Plaintiff claims that Defendants’ actions constituted deliberate indifference to his
serious medical needs in violation of the Fourteenth Amendment, and in doing so mentions the due
process clause. (See Doc. 1 ¶ 20.) The claim of deliberate indifference to serious medical needs is
an Eighth Amendment claim rather than a due process claim. O’Donnell v. Pa. Dep’t of Corr., Civ.
No. 4:08-CV-00136, 2011 WL 1258327, at *5 (M.D. Pa. Mar. 7, 2011). Thus, the court need not
address this argument by Defendants.
3
Based on the court’s disposition of both motions to dismiss, the court will defer ruling
upon punitive damages at this time.
4
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It is well established that personal liability under § 1983 cannot be imposed
upon a state official based on a theory of respondeat superior. See, e.g., Rizzo v.
Goode, 423 U.S. 362, 368 (1976); Hampton v. Holmesburg Prison Officials, 546 F.2d
1077, 1082 (3d Cir. 1976). It is also well settled in the Third Circuit that the
defendant’s personal involvement in alleged constitutional deprivations is a
requirement in a § 1983 case and that a complaint must allege such personal
involvement. Hampton, 546 F.2d at 1082. Each named defendant must be shown,
through the complaint’s allegations, to have been personally involved in the events or
occurrences upon which a plaintiff’s claims are based. Id. As the court stated in Rode
v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998):
A defendant in a civil rights action must have personal involvement in
the alleged wrongs . . . . Personal involvement can be shown through
allegations of personal direction or of actual knowledge and
acquiescence. Allegations of participation or actual knowledge and
acquiescence, however, must be made with appropriate particularity.
Rode, 845 F.2d at 1207 (citations omitted). Courts have also held that an allegation
seeking to impose liability on a defendant based on supervisory status, without more,
will not subject the official to section 1983 liability. Id. at 1208.
1.
Defendant Dunkle
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Plaintiff alleges that, on the day of the inmate fight, Defendant Dunkle refused
to get medical assistance for him, but took photographs of his thumb and told him to
think about what he had done. (Doc. 1 ¶ 1.) In their brief in opposition, Corrections
Defendants argue that Plaintiff has failed to allege personal involvement by Defendant
Dunkle because he cannot be held liable for taking photographs of Plaintiff’s injuries
and is not responsible for providing medical care to inmates in the RHU. Initially, the
court agrees that Defendant Dunkle cannot be liable for simply taking photographs of
the injuries to Plaintiff, which he did so presumably to document the events
surrounding the inmate fight. Further, normally a non-physician defendant cannot be
considered deliberately indifferent for failing to respond to an inmate’s medical
complaints when he is already receiving treatment by the prison’s medical staff.
Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993). Providing medical care is the
responsibility of medical professionals. In this case, however, Plaintiff was not yet
receiving treatment for his injuries when Defendant Dunkle refused to call for medical
assistance. Where a failure or delay in providing prescribed treatment is deliberate
and motivated by non-medical factors, a constitutional claim may be presented. See
id. Thus, the court will not dismiss Defendant Dunkle as a party in this action on the
basis of lack of personal involvement.
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2.
Defendants Showalter and Price
Regarding Plaintiff’s claims against Defendants Showalter and Price with
respect to grievances, Plaintiff cannot assert liability against corrections staff due to
their involvement in reviewing and/or affirming grievance decisions. First, the filing
of a grievance is not sufficient to show the actual knowledge necessary for personal
involvement. Rode, 845 F.2d at 1208. Second, mere concurrence in a prison
administrative appeal process does not implicate a constitutional concern. Garfield v.
Davis, 566 F. Supp. 1069, 1074 (E.D. Pa. 1983) (holding that administrative review of
prison disciplinary hearings is not constitutionally guaranteed and, therefore, the
plaintiff’s claims with respect to the Program Review Committee’s decision did not
rise to constitutional significance). While prisoners have a constitutional right to seek
redress of their grievances from the government, that right is the right of access to the
courts, which is not compromised by the failure of the prison to address grievances.
Wilson v. Horn, 971 F. Supp. 943, 947 (E.D. Pa. 1997), aff’d, 142 F.3d 430 (3d Cir.
1998). In addition, an inmate has no federally protected liberty interest in having
grievances resolved in his favor or to his satisfaction. Tabb v. Hannah, Civ. No. 1:10CV-1122, 2012 WL 3113856, at *5 (M.D. Pa. July 30, 2012). Stated otherwise, a
prison official’s failure to agree with an inmate’s allegations, or take specific action
17
requested by a prisoner, does not without more, indicate unconstitutional conduct by
those who respond to the grievance. See Alexander v. Forr, Civ. No. 3:04-CV-0370,
2006 WL 2796412, at *19-20 (M.D. Pa. Sept. 27, 2006); see also Pryor-El v. Kelly,
892 F. Supp. 261, 275 (D.D.C. 1995) (“Because a prison grievance procedure does not
confer any substantive constitutional right upon prison inmates, prison officials’
failure to comply with the grievance procedure is not actionable.”). For these reasons,
Plaintiff’s deliberate indifference claim will be dismissed as to Defendants Showalter
and Price, only to the extent that these claims were brought against these Defendants
solely based on their involvement with the handling of Plaintiff’s relevant grievances.
The court will address Plaintiff’s further allegations with respect to these Defendants
infra.
B.
Eighth Amendment Deliberate Indifference Claims
In their motions to dismiss, both sets of Defendants argue that Plaintiff has
failed to establish a claim of deliberate indifference to his serious medical needs. A
Section 1983 claim based on a violation of the Eighth Amendment’s prohibition of
unnecessary and wanton infliction of pain arises where prison officials or doctors
exhibit deliberate indifference to serious medical needs of prisoners. Estelle v.
Gamble, 429 U.S. 97, 104 (1976). A deliberate indifference claim has two
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components: (1) an objective component under which the plaintiff must show that
denial of care itself was serious or that it had serious consequences; and (2) a
subjective component under which the plaintiff must show that the defendant has a
sufficiently culpable state of mind. See Montgomery v. Pinchak, 294 F.3d 492, 499
(3d Cir. 2002). Further, a serious medical need is “one that has been diagnosed by a
physician as requiring treatment or one that is so obvious that a lay person would
easily recognize the necessity for a doctor’s attention.” Mines v. Levi, 2009 WL
8390011, at *7 (E.D. Pa. Mar. 26, 2009) (quoting Colburn v. Upper Darby Twp., 946
F.2d at 1017, 1023 (3d Cir. 1991)); Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro,
834 F.2d 326, 347 (3d Cir. 1987). “[I]f unnecessary and wanton infliction of pain
results as a consequence of denial or delay in the provision of adequate medical care,
the medical need is of the serious nature contemplated by the Eighth Amendment.”
Young v. Kazmerski, 226 F. App’x 191, 193 (3d Cir. 2008) (quoting Lanzaro, 834
F.2d at 347).
Deliberate indifference occurs where a defendant: (1) knows of a prisoner’s
need for medical treatment but intentionally refuses to provide it; (2) delays necessary
medical treatment based on a non-medical reason; (3) prevents a prisoner from
receiving needed or recommended medical treatment; or (4) persists in a particular
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course of treatment “in the face of resultant pain and risk of permanent injury.” Rouse
v. Allen, 182 F.3d 192, 197 (3d Cir. 1999). However, “claims of negligence or
medical malpractice, without some more culpable state of mind, do not constitute
‘deliberate indifference.’” Id. (citing Estelle, 429 U.S. at 105); see also Durmer v.
O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (finding that if inadequate treatment results
simply from an error in medical judgment, there is no constitutional violation);
Lanzaro, 834 F.2d at 346 (stating mere disagreement as to the proper medical
treatment does not support an Eighth Amendment claim). In Estelle, the Supreme
Court held the following:
[A]n inadvertent failure to provide adequate medical care cannot be said
to constitute “an unnecessary and wanton infliction of pain” or to be
“repugnant to the conscience of mankind.” Thus, a complaint that a
physician has been negligent in diagnosing or treating a medical
condition does not state a valid claim of medical mistreatment under the
Eighth Amendment. Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner.
Estelle, 429 U.S. at 105-06.
It follows then that inconsistencies or differences in medical diagnoses, short
delays unaccompanied by arbitrary or unduly burdensome bureaucratic procedures,
and the refusal to summon the medical specialist of the inmate’s choice, perform tests
or procedures that the inmate desires, or to explain to the inmate the reason for
20
medical action or inaction does not amount to cruel and unusual punishment. Runkle,
2013 WL 6485344, at * 8 (citing Maqbool v. Univ. Hosp. of Medicine & Dentistry of
N.J., Civ. No. 11-4592, 2012 WL 2374689, at * 9 (D. N.J. Jun. 13, 2012)). As such,
allegations that the inmate was provided with medical care, but the care was
“inadequate,” fails to state a cognizable claim. Runkle, 2013 WL 6485344, at *8
(citing Taylor v. Visinsky, 422 F. App’x 76, 78 (3d Cir.), cert. denied, ___ U.S. ___,
132 S. Ct. 406 (2011)). See also Jetter v. Beard, 130 F. App’x 523, 526 (3d Cir.
2005) (noting that while the plaintiff would have preferred a different course of
treatment, his preference does not establish an Eighth Amendment cause of action).
Rather, “the decision whether to summon a doctor, like the question of whether a
certain diagnostic technique or form of treatment should be prescribed, ‘is a classic
example of a matter for medical judgment.’” McNeil v. Redman, 21 F. Supp. 2d 884,
887 (C.D. Ill. 1998) (quoting Estelle, 429 U.S. at 107). Accordingly, the deliberate
indifference test “affords considerable latitude to prison medical authorities in the
diagnosis and treatment of the medical problems of inmate patients. Courts will
‘disavow any attempt to second guess the propriety or adequacy of a particular course
of treatment . . . which remains a question of sound professional judgment.’” Little v.
Lycoming Cnty., 912 F. Supp. 809, 815 (M.D. Pa. 1996) (citing Inmates of Allegheny
21
Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979), quoting Bowring v. Godwin,
551 F.2d 44, 48 (4th Cir. 1977)).
In the matter sub judice, Plaintiff alleges that Defendant Dunkle intentionally
refused to call the medical department to address Plaintiff’s injuries when he entered
the RHU on April 17, 2012. (Doc. 1 ¶ 1.) According to Plaintiff, after Defendant
Dunkle took photographs of Plaintiff’s swollen and bloody thumb, he expressly told
Plaintiff that he was not getting any medical assistance and that Plaintiff should “sit in
[his] cell and think about what [he] did because the inmate that [Plaintiff] was fighting
was one of [Defendant Dunkle’s] informants and the pain [Plaintiff was] in should
teach [him] a lesson.” (Id.) As a result of Defendant Dunkle’s refusal to inform
medical staff of Plaintiff’s injuries, Plaintiff was left in his RHU cell for three days
without medical assistance. (Id. ¶ 2.) While the Third Circuit has held that a nonphysician defendant such as Defendant Dunkle cannot be considered deliberately
indifferent for failing to respond to an inmate’s medical complaints while the inmate is
undergoing treatment by the prison medical staff, there is no prohibition to liability
when the claim arises from events preceding the commencement of the treatment. See
Durmer, 991 F.2d at 69. In their motion to dismiss, Corrections Defendants argue that
Defendant Dunkle is not liable because he was not responsible for providing medical
22
care to inmates in the RHU; rather, that care was the responsibility of medical
professionals. (Doc. 17 at 6.) This argument is unavailing because Plaintiff’s
allegations clearly amount to Defendant Dunkle’s deliberate indifference to his serious
medical needs prior to any medical attention he later received from medical staff.
Thus, Corrections Defendants’ motion to dismiss as to Defendant Dunkle will be
denied, and the Eighth Amendment deliberate indifference claim against him may
proceed.
Turning to the remaining Defendants, the allegations in Plaintiff’s complaint
clearly demonstrate that Plaintiff received medical treatment beginning on April 20,
2012 following the injuries to his thumb resulting from the April 17, 2012 inmate
fight. Three days after the fight, Plaintiff was examined by SCI-Huntingdon’s
medical department by way of x-ray.5 (Doc. 1 ¶ 3.) In addition, Plaintiff was
immediately referred to the Altoona Regional Hospital for further evaluation and
treatment. (Id.) At the hospital, he was examined by Dr. Stauff, who, Plaintiff claims,
requested immediate surgery and follow-up appointments for April 23, 2012. (Id. ¶¶
As the court has already determined that, based on Plaintiff’s allegations, Corrections
Defendant Dunkle was the cause of the 3-day delay in treatment, allegedly for non-medical reasons,
the court need not discuss this 3-day delay in the context of a claim of deliberate indifference against
the remaining Defendants. Nothing in Plaintiff’s complaint leads the court to conclude that any
other Defendant participated in that 3-day delay. (See Doc. 1.)
5
23
4-6.) According to Plaintiff, Defendants Parkes and Showalter knew of the scheduling
needs for the surgery and appointments, but intentionally made no such arrangements
for Plaintiff’s transportation. (Id. ¶¶ 4, 7.) In fact, Plaintiff did not return to Dr.
Stauff until May 9, 2012, at which time the doctor stated that, because of the state of
Plaintiff’s hand, he could not perform the necessary surgery. (Id. ¶ 8.) As a result, on
May 10, 2012, almost a month after Plaintiff sustained the serious injury, another
outside doctor performed surgery on Plaintiff’s thumb. (Id.) Plaintiff alleges that he
remained in severe pain due to this nearly month-long delay. (Id.) In their motions to
dismiss, both sets of Defendants seemingly argue that, because Plaintiff “eventually”
underwent surgery, even if the treatment was ineffective, he has not established
deliberate indifference. (See Doc. 17 at 8; Doc. 21 at 7-8.) However, Defendants’
arguments do not properly respond to Plaintiff’s allegation that Defendants Parkes and
Showalter deliberately refused to make scheduling arrangements for Plaintiff’s
surgery after receiving Dr. Stauff’s request for immediate surgery. Moreover, these
Defendants do not provide any justification or reasoning for the delay in scheduling
the recommended treatment, such as a medical directive to do so or a holdup due to
bureaucratic procedures.6 At this stage in the litigation and without further discovery,
In response to Plaintiff’s allegation that Defendant Showalter failed to act after he
wrote to her requesting pain medication prior to the May 10, 2012 surgery, Corrections Defendant
6
24
the court cannot assume that the extent of the risk to Plaintiff posed by that delay was
not serious. Thus, the motions to dismiss as to Defendants Parkes and Showalter will
be denied, and the deliberate indifference claims against them for the delay in
treatment for Plaintiff’s injuries may proceed.
Turning to Plaintiff’s allegations with respect to treatment after the May 10,
2012 surgery, Plaintiff complains that he was denied physical therapy and a brace
despite informing medical staff of his pain and discomfort. With respect to the
physical therapy, Plaintiff avers that Defendant Dr. Araneda, after examining Plaintiff
several times in the weeks following the surgery, told him that physical therapy was
not necessary. (Id. ¶ 10.) Even so, on July 17, 2012, Defendant Dr. Araneda
recommended exercises he could perform in his cell to ease the pain and stiffness in
his wrist and thumb. (Id. ¶ 11.) From the complaint it appears that Defendant Dr.
Araneda’s plan was not the one that Plaintiff had desired. A prisoner’s disagreement
with “evaluations and opinions regarding him” are insufficient to set forth an
actionable constitutional claim. Paine v. Baker, 595 F.2d 197, 201 (4th Cir. 1979).
argue that her response, “She’d do nothing until [Plaintiff] return to the outside hospital and [was]
seen by an orthopedic specialist,” (Doc. 1 ¶ 7), is reasonable because Plaintiff could have obtained
medication from the prison commissary or requested it from a nurse or doctor. (See Doc. 50 at 7-8.)
Given that Plaintiff’s relevant allegation involves Defendant Showalter’s delay in scheduling such a
return to the outside hospital, this argument is without merit.
25
Further, courts will not second guess whether a particular course of treatment is
adequate or proper. Parham v. Johnson, 126 F.3d 454, 458 n.7 (3d Cir. 1997).
Because Plaintiff acknowledges that a treatment plan was provided to him, the court
concludes that his claim with respect to physical therapy is solely premised on his
disagreement with medical determinations and evaluations made by Defendant Dr.
Araneda and, therefore, Plaintiff has not established this deliberate indifference claim.
Turning to the request for a brace, in their brief in opposition, Corrections
Defendants contend that there were likely legitimate penological reasons for denying
Plaintiff the brace while he was in the RHU. (Doc. 50 at 5.) Further, RHU inmates
have been denied canes and walkers because they contain metal which can be used to
fashion a weapon. (Id.) Based on this concern for institutional security, the court
concludes that Plaintiff has failed to establish a claim of deliberate indifference for
failing to provide him with a brace. See Whitley v. Albers, 475 U.S. 312, 321-22
(1986) (holding that prison officials should be accorded wide ranging deference in the
adoption and execution of policies necessary to preserve internal order and maintain
institutional security); Lerma v. Bell, 2 F. App’x 782, 784 (9th Cir. 2001) (affirming
district court’s granting of summary judgment to defendants who confiscated the
plaintiff’s elastic knee brace for legitimate safety concerns).
26
In sum, the court will allow the claims against Corrections Defendants Dunkle
and Showalter and Medical Defendant Parkes for deliberate indifference to Plaintiff’s
serious medical needs based on their respective intentional delays in requesting and/or
scheduling medical treatment on behalf of Plaintiff to proceed. The motions to
dismiss with respect to the remaining Defendants will be granted, as Plaintiff has not
established claims of deliberate indifference against Defendants Harris, Price, or
Araneda.
C.
Retaliation Claim
Plaintiff alleges that Corrections Defendants Price and Showalter denied him
medical treatment in retaliation for his written and verbal complaints against them.
(Doc. 1 ¶ 18.) Upon review, the court will grant the motion to dismiss as to Defendant
Price, but will allow the claim against Defendant Showalter to proceed.
An official who retaliates against an inmate for exercising his constitutional
rights is subject to liability under § 1983. See Rauser v. Horn, 241 F.3d 330, 333 (3d
Cir. 2001). “A prisoner alleging retaliation must show (1) constitutionally protected
conduct, (2) an adverse action by prison officials sufficient to deter a person of
ordinary firmness from exercising his constitutional rights, and (3) a causal link
between the exercise of his constitutional rights and the adverse action taken against
27
him.” Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (internal quotation marks
and citations omitted). The prisoner bears the initial burden of showing that the
“constitutionally protected conduct was ‘a substantial or motivating factor’ in the
decision to discipline him.” Rauser, 241 F.3d at 333-34 (quoting Mount Healthy Bd.
of Educ. v. Doyle, 429 274, 287 (1977)).
Plaintiff arguably has engaged in conduct protected by the First Amendment by
filing grievances about the medical care he was receiving and by verbally complaining
to Defendants Price and Showalter. See Booth v. King, 346 F. Supp. 2d 751, 762
(E.D. Pa. 2004). As to Defendant Price, Plaintiff alleges that he complained to her
about the care he was receiving after the surgery, specifically with respect to physical
therapy and a brace. As a result of those complaints, he asserts, he was denied
appropriate care. However, as the court has already determined that there exist no
Eighth Amendment violations related to Plaintiff’s medical care after the May 10,
2012 surgery, Plaintiff has failed to establish any adverse action taken by Defendant
Price. Stated otherwise, the complaint fails to suggest any nexus between Plaintiff’s
expressive conduct (filing written and verbal grievances with Defendant Price) and the
quality of the treatment he received. None of Plaintiff’s allegations against Defendant
28
Price give rise to an inference of retaliatory conduct, and therefore the motion to
dismiss pertaining to this claim will be granted.
Turning to Plaintiff’s allegations of retaliation against Defendant Showalter, in
light of the court’s finding herein as to the deliberate indifference claim against
Defendant Showalter, at this stage in the litigation, the court will allow this claim of
retaliation related to the delay of medical treatment to proceed. The motion to dismiss
as to this claim will be denied.
D.
Conspiracy Claim
Plaintiff alleges that Defendants Showalter, Parkes, Price, Araneda, and Harris
conspired against him in connection with the denial of medical care both before and
after his May 10, 2012 surgery. In order to set forth a cognizable conspiracy claim, a
plaintiff cannot rely on broad or conclusory allegations. D.R. by L.R. v. Middle Bucks
Area Vocational Technical Sch., 972 F.2d 1364, 1377 (3d Cir. 1992); Rose v. Bartle,
871 F.2d 331, 366 (3d Cir. 1989); Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir.
1989). The Third Circuit has noted that a civil rights conspiracy claim is sufficiently
alleged if the complaint details the following: (1) the conduct that violated the
plaintiff’s rights; (2) the time and the place of the conduct; and (3) the identity of the
29
officials responsible for the conduct. Oatess v. Sobolevitch, 914 F.2d 428, 432 n.8 (3d
Cir. 1990). See also Colburn v. Upper Darby Twp., 838 F.2d 663 (3d Cir. 1988).
The essence of a conspiracy claim is an agreement or concerted action between
individuals. See D.R. by L.R., 972 F.2d at 1377; Durre, 869 F.2d at 545. A plaintiff
must therefore allege with particularity and present material facts which show that the
purported conspirators reached some understanding or agreement or plotted, planned
and conspired together to deprive the plaintiff of a protected federal right. See D.R. by
L.R., 972 F.2d at 1377; Rose, 871 F.2d at 366. Where a civil rights conspiracy is
alleged, there must be specific facts in the complaint which tend to show a meeting of
the minds and some type of concerted activity. Deck v. Leftridge, 771 F.2d 1168,
1170 (8th Cir. 1985). A plaintiff cannot rely on subjective suspicions and
unsupported speculation. Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991).
Plaintiff fails to state a viable conspiracy claim against Defendants Showalter,
Parkes, Price, Araneda, and Harris. His general allegations that these Defendants,
worked in concert to deny him medical care are conclusory, and fall short from
satisfying the requirement that a civil rights conspiracy claim contain specific facts
that tend to show a meeting of the minds and concerted activity. Indeed, there are
simply no allegations in the complaint to support a plan or agreement of these
30
Defendants to conspire or engage in a corrupt plot to violate Plaintiff’s civil rights,
and the court therefore rejects any of Plaintiff’s speculative contentions as clearly
baseless. See Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991) (finding that
conspiracy claims which are based upon pro se plaintiff’s subjective suspicions and
unsupported speculation properly dismissed under § 1915(d)). Accordingly, the
motions to dismiss will be granted as to this claim.
E.
State Law Claims
Plaintiff also asserts medical negligence and malpractice claims related to his
medical care, as well as claims of intentional infliction of emotional distress and, what
the court construes as, negligent infliction of emotional distress against Corrections
Defendants and Medical Defendants. The court will discuss the claims as they apply
to both sets of Defendants.
1.
Medical Negligence / Medical Malpractice
a.
Corrections Defendants
Under Pennsylvania’s sovereign immunity statute, “the Commonwealth, and its
officials and employees acting within the scope of their duties, shall continue to enjoy
sovereign and official immunity and remain immune from suit except as the General
Assembly shall specifically waive the immunity.” 1 Pa. Cons. Stat. Ann. § 2310. The
31
General Assembly specifically waived sovereign immunity in nine areas, including
cases involving medical professional liability.7 See 42 Pa. Cons. Stat. Ann. § 8522.
However, it is well-settled that immunity is waived only for claims asserted against
health care employees, and not to individuals who are not medical professionals.
McCool v. Dep’t of Corr., 984 A.2d 565, 570 (Pa. Cmwlth. 2009) (interpreting 42 Pa.
Cons. Stat. Ann. § 8522(b)(2)).
Here, Plaintiff’s medical negligence and malpractice claims against Corrections
Defendants are barred by Pennsylvania’s sovereign immunity statute. While the claim
does fall within the category of waiver for acts of health care employees of
Commonwealth agency medical facilities or institutions, see 42 Pa. Cons. Stat. Ann. §
8522(b)(2), these named Defendants from SCI-Huntingdon are not health care
7
8522(b) are:
The nine exceptions to sovereign immunity pursuant to 42 Pa. Cons. Stat. Ann. §
(1) operation of any motor vehicle in the possession or control of a Commonwealth
party; (2) acts of health care employees of Commonwealth agency medical facilities
or institutions; (3) care, custody, or control of personal property in the possession or
control of Commonwealth parties; (4) dangerous condition of Commonwealth agency
real estate and sidewalks; (5) dangerous condition of highways under the jurisdiction
of Commonwealth agency created by potholes or sinkholes or other similar
conditions created by natural elements; (6) care, custody, or control of animals in the
possession or control of a Commonwealth party; (7) sale of liquor at Pennsylvania
liquor stores; (8) acts of a member of the Pennsylvania military forces; and (9)
administration, manufacture and use of toxoid or vaccine.
32
employees. Thus, the medical negligence and malpractice claims set forth against
Corrections Defendants will be dismissed.
b.
Medical Defendants
Plaintiff alleges claims of medical negligence and malpractice against Medical
Defendants for their refusal to provide him with physical therapy and a brace for his
thumb. Because such negligence claims sound in medical malpractice, Plaintiff was
required to submit expert evidence to establish his claim. Because he has failed to do
so, Medical Defendants seek dismissal of these claims against them.
To make out a claim for medical malpractice under Pennsylvania law, a plaintiff
must show that: (1) the physician owed the patient a duty of care; (2) the physician
breached the duty; (3) the breach caused the harm suffered; and (4) the damages were
a direct result of the harm. Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140,
1145 (Pa. 2003). Unless “the matter is so simple or the lack of skill or care so obvious
as to be within the range of experience and comprehension” of a lay person, a plaintiff
must submit expert evidence to show breach and causation. Id. (quoting HightowerWarren v. Silk, 988 A.2d 52, 54 n.1 (Pa. 1997). See also Pa. R. Civ. P. 1042.3
(requiring a certificate of merit from an appropriate licensed professional for
professional liability actions).
33
In this case, Plaintiff’s negligence and medical negligence claims clearly sound
in medical malpractice. Plaintiff challenges the medical care and treatment Medical
Defendants provided for the injuries to his thumb. Further, the medical issues he
raises here, including the need for physical therapy and a brace following surgery, are
not so simple that a lay jury could be expected to evaluate them without expert
testimony. Plaintiff has failed to file a certificate of merit in the 365 days since he
filed his complaint. Such a failure renders his medical negligence claims insufficient
as a matter of Pennsylvania law. See Toogood, 824 A.2d at 1145; Pa. R. Civ. P.
1042.3; see also Iwanejko v. Cohen & Grigsby, 249 F. App’x 938, 944 (3d Cir. 2007)
(affirming district court’s application of Pa. R. Civ. P. 1042.3 as substantive state
law).
2.
Intentional Infliction of Emotional Distress
In Pennsylvania, “[o]ne who by extreme and outrageous conduct intentionally
or recklessly causes severe emotional distress to another is subject to liability for such
emotional distress, and if bodily harm to the other results from it, for such bodily
harm.” Taylor v. Albert Einstein Med. Ctr., 754 A.2d 650, 652 (Pa. 2000). Such
tortious conduct, “‘must be so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
34
intolerable in a civilized society.’” Hoy v. Angelone, 720 A.2d 745, 753 (Pa. 1998)
(quoting Buczek v. First Nat’l Bank of Mifflintown, 531 A.2d 1122, 1125 (Pa. Super.
Ct. 1987)). Under this standard, “[i]t has not been enough that the defendant has acted
with an intent which is tortuous or even criminal, or that he has intended to inflict
emotional distress, or even that his conduct has been characterized by ‘malice,’ or a
degree of aggravation which would entitle the plaintiff to punitive damages for
another tort.” Daughen v. Fox, 539 A.2d 858, 861 (Pa. Super. Ct. 1988) (quoting
Restatement (Second) of Torts § 46(1) (1965), Comment(d)).
Here, Plaintiff has failed to establish any conduct on the part of any Defendant
that would constitute an intentional infliction of emotional distress. In fact, Plaintiff
has not alleged anything close to the extreme and outrageous conduct that would give
rise to a claim for intentional infliction of emotional distress. See, e.g., Hoy, 720 A.2d
at 754 (citing Papieves v. Lawrence, 263 A.2d 118 (Pa. 1970) (holding intentional
infliction of emotional distress proper when the defendant, after striking and killing
the plaintiff’s son with an automobile and thereafter failing to notify authorities or
seek medical assistance, buried body in a field where it was discovered two months
later and returned to parents); Banyas v. Lower Bucks Hosp., 437 A.2d 1236 (Pa.
Super. Ct. 1981) (holding intentional infliction of emotional distress proper when the
35
defendants intentionally fabricated records to suggest that the plaintiff had killed a
third party which led to the plaintiff being indicted for homicide); Chuy v.
Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir. 1979) (holding intentional
infliction of emotional distress proper when the defendant’s team physician released
to press information that the plaintiff was suffering from fatal disease, when physician
knew such information was false); Johnson v. Caparelli, 625 A.2d 668, 672 (Pa.
Super. Ct. 1993) (regarding a priest’s sexual abuse of altar boy); Field v. Philadelphia
Elec. Co., 565 A.2d 1170, 1183-84 (Pa. Super. Ct. 1989) (discussing claim that
defendant deliberately vented highly radioactive steam on the plaintiff and attempted
to conceal overexposure to radiation). Plaintiff’s claims do not rise to the level of
conduct necessary to bring an intentional infliction of emotional distress claim.
Accordingly, Plaintiff’s intentional infliction of emotional distress claim will be
dismissed.
3.
Negligent Infliction of Emotional Distress
Plaintiff has also failed to state a claim of negligent infliction of emotional
distress. Under Pennsylvania law, “the cause of action for negligent infliction of
emotional distress is restricted to four factual scenarios: (1) situations where the
defendant had a contractual or fiduciary duty toward the plaintiff; (2) the plaintiff was
36
subjected to a physical impact; (3) the plaintiff was in a zone of danger, thereby
reasonably experiencing a fear of impending physical injury; or (4) the plaintiff
observed a tortious injury to a close relative.” Toney v. Chester Cnty. Hosp., 961 A.2d
192, 197-98 (Pa. Super. Ct. 2008) (citing Doe v. Philadelphia Cmty. Health
Alternatives AIDS Task Force, 745 A.2d 25, 26 (Pa. Super. Ct. 2000). Here,
Plaintiff’s allegations do not fit into any of these scenarios. From a generous reading
of the complaint, Plaintiff alleges that the refusal to provide him with physical therapy
appointments caused him emotional distress. However, Plaintiff further alleges that
Defendant Dr. Araneda advised him of physical exercises (with a tennis ball or wash
rag) he was free to perform in his cell to alleviate any stiffness in his wrist. In light of
this further allegation, Plaintiff has failed to provide sufficient evidence that it was
Defendants’ failure to schedule additional physical therapy that has caused him
substantial physical harm. Therefore, Plaintiff’s negligent infliction of emotional
distress claim will be dismissed.
F.
Amended Complaint
Plaintiff contemporaneously filed a“motion and opposition with amended
complaint,” (Doc. 47), with his briefs in opposition to the instant motions to dismiss,
(Docs. 48 & 49). The court finds that the proposed amended complaint does nothing
37
to cure any of the deficiencies noted herein. Therefore, this case will proceed on the
instant disposition of the motions to dismiss the original complaint.
IV.
Conclusion
For the reasons set forth above, both motions to dismiss will be granted in part
and denied in part. Defendants Harris, Price, and Araneda will be dismissed as parties
in this action. Corrections Defendants Showalter and Dunkle and Medical Defendant
Parkes will be directed to answer the complaint.
An appropriate order will issue.
s/Sylvia H. Rambo
United States District Judge
Dated: September 30, 2014.
38
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